C2003/2017, Transcript of Proceedings [2003] AIRCTrans 2178 (6 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 2747
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

C2003/2017

THE NATIONAL UNION
OF WORKERS

and

NOT QUITE RIGHT PTY
LIMITED AND OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims, wages and
working conditions

MELBOURNE

10.30 AM, WEDNESDAY, 21 MAY 2003

PN1

MR P. RICHARDSON: I appear for the National Union of Workers.

PN2

MR J. BATES: I appear on behalf of VECCI and for our member who is Clifford Hallam Proprietary Limited.

PN3

THE COMMISSIONER: Yes, Mr Richardson.

PN4

MR RICHARDSON: Thank you, Commissioner. Sir, this matter concerns a notification of alleged industrial dispute. By means of registered post the National Union of Workers caused a log of claims to be served upon eight companies on 15 April. Attached to each of the logs of claims was a letter of demand which was also dated 15 April which stated, and I quote:

PN5

The National Union of Workers, an organisation registered under the Workplace Relations Act 1996, demands that you pay and observe in respect of all of your employees who are eligible to be members of the union the rates of pay and conditions of employment contained in the attached log of claims. Unless you comply with this demand within seven days of the date of this letter the union will take appropriate steps to determine the matters in dispute. If you reject the demands prior to this seven day period the union will seek to determine the matters in dispute immediately.

PN6

I end the quote there and indicate that the letter of demand was signed by the General Secretary of the union, Mr Greg Sword. Suffice to say at the conclusion of the seven day period referred to in the letter of demand none of the eight companies had agreed or acquiesced to the various claims and, accordingly, a notification was filed with the Melbourne Registry on 1 May and that notification is dated 30 April. In addition to the notification the union filed an affidavit sworn by Mr Sword and also dated 30 April attesting to the service of the log of claims and letter of demand, as I have indicated. Sir, I notice somebody else may wish to make an appearance in this matter.

PN7

MR M. RINALDI: Yes, thank you. Apologies, Commissioner. I seek leave to appear for Pro Pak Pty Ltd, which I understand is one of the eight respondents to the log.

PN8

THE COMMISSIONER: Do you have any objection, Mr Richardson?

PN9

MR RICHARDSON: No, I don't.

PN10

THE COMMISSIONER: Leave is granted, Mr Rinaldi.

PN11

MR RINALDI: Thank you.

PN12

THE COMMISSIONER: Please proceed.

PN13

MR RICHARDSON: Thank you, sir. I was indicating that the notification and an affidavit in support was also filed at the time and should appear upon the Commission's file. Subsequent to receiving a notice of listing in this matter each of the eight companies were served with a copy of that notice of listing. That occurred, again, by means of registered post on 8 May and a further affidavit sworn by Mr Sword dated 12 May and filed on the same day with the Registry should also appear upon the Commission's file.

PN14

THE COMMISSIONER: It does.

PN15

MR RICHARDSON: Thank you, sir. Sir, before turning to the particulars as to the finding of dispute that is sought in this matter I should indicate that the union is in receipt of a copy of correspondence dated 12 May and addressed to yourself from a Mr Gordon Fairbarn, the warehouse supervisor, of San Remo Macaroni Company Proprietary Limited indicating amongst other things that the company employs only two persons, neither of whom are members of the union and that the company does not, and I quote:

PN16

Has no desire to be involved in the alleged dispute.

PN17

And I end the quote there. I am obliged to Mr Rinaldi, because I did have a file note indicating that he would be appearing, there was a - but I might have to reserve his rights or his client's rights on his behalf, but there also has been some communication in respect of the company, Pro Pak, for whom he appears, and I understand that he will address you on that matter shortly. But, in our submission, we say that a formal finding of dispute pursuant to section 101 of the Act should be made.

PN18

We say that the parties in dispute are on the one hand the National Union of Workers and on the other hand the eight companies that are identified in the documentation as filed and appearing upon the Commission's file. We say that the matters in dispute are those contained in the log of claims attached to the letter of demand dated 15 April and that the dispute exists specifically within the State of Victoria and as such there are additional powers available to the Commission that avoid the need for the otherwise prerequisite interstateness. If the Commission pleases.

PN19

THE COMMISSIONER: Just one question in relation to clause 33 of the log which deals with the issue of preference, given section 94 of the Act, I have difficulty with your proposal that I might find a dispute which included that demand.

PN20

MR RICHARDSON: To that extent, therefore, sir, we would seek that the dispute finding be in relation to the claims with the exclusion of that claim. If the Commission pleases.

PN21

THE COMMISSIONER: Thank you, Mr Richardson. Yes, Mr Baites.

PN22

MR BATES: If the Commission pleases. I was going to raise the issue of interstateness in terms of the dispute but perhaps at this point I shall let the Commission know that we are not going to object formally to a finding of dispute today. We do reserve our rights to re-visit that at a later time and we would have no objection to the Commission directing the parties to confer on the matter, nor would we have an objection to a report back being set by the Commission. If the Commission pleases.

PN23

THE COMMISSIONER: Thank you. Yes, Mr Rinaldi.

PN24

MR RINALDI: Thank you, Commissioner. My client, Pro Pak Proprietary Limited, does not employ anyone that is not in contract, indeed, with any of the workers. This is one of the Odco System companies, Commissioner, and my client, Pro Pak Proprietary Limited, is a client in turn of Agency Contracting Solutions which is a licensee of Labour Force Australia Limited. And the Commission is no doubt aware of decisions such as, perhaps most relevantly, the Full Bench decision in Kangan Batman Tafe v Fox which was decided by a Full Bench comprising the President, Vice President McIntyre and Commissioner Redmond. It is print S0253. It was handed down on 25 October 1999.

PN25

That decision and a number of other decisions in other jurisdictions including a similar decision by another Full Bench in Damevski v Endoxos, E-n-d-o-x-o-s, Pty Ltd, which was print PR922380, and was a Full Bench comprising the President, Deputy President Blain and Commissioner Lawson. That particular matter didn't involve one of the, if I can call it the Labour Force licensees involved, MLC Workplace Solutions Proprietary Limited, but decisions in all of those matters and I won't refer to - there are decisions in the Queensland Commission and in the New South Wales Commission as well - are that there is no contract at all with the workers between, in this case, Pro Pak Proprietary Limited, relevantly, and the workers that are working at its site. Its site, I should say, is in fact a Unilever site as I understand it.

PN26

THE COMMISSIONER: Sorry?

PN27

MR RINALDI: The site at which these workers that are in question is a Unilever site at which Pro Pak, if you like, provides the labour but Pro Pak acquires that labour from Agency Contracting Solutions. So there is a contract, as I am instructed, between Agency Contracting Solutions and Pro Pak. There is no contract between Pro Pak and the people doing the work. They, in turn, have a contract with Agency Contracting Solutions. In light of that, not only is there no employment relationship but there is no contract at all, therefore, there can be no contract of employment which is the nub of the decisions in Kangan Batman and the other cases.

PN28

For that reason we say there is no - can be no industrial dispute within the meaning of section 4 of the Act and we strongly oppose any dispute being found between Pro Pak Proprietary Limited and the NUW. We say there can be no such dispute as a matter of jurisdiction for the reasons I have outlined. We would seek to either be removed from the list of parties found to be in dispute. I understand from discussions that my instructing solicitor had with Ms Parkes from the NUW yesterday afternoon that the NUW intends to press the dispute finding. I assume that includes against Pro Pak at this stage.

PN29

If that is the case we would like the opportunity to discuss it with them further and, if necessary, we would certainly want the opportunity to put material before the Commission and make submissions on that matter. The preferred position from my client's point of view, Commissioner, would be that certainly we are happy to confer but we wouldn't want to have any obligation imposed on us at this point to make submissions and file affidavit material and the like, given there may be an opportunity to discuss it further with the union and perhaps to reach an agreed resolution. I understand that has happened in other matters where companies using the Odco System have been logged. It may be that the Commission wishes to put us on a reserve list at this point in time or else we will just - and not a party to any dispute that may be found. If the Commission pleases.

PN30

THE COMMISSIONER: Thank you, Mr Rinaldi. Mr Richardson.

PN31

MR RICHARDSON: Perhaps I shouldn't have been so polite to Mr Rinaldi.

PN32

THE COMMISSIONER: Pardon?

PN33

MR RICHARDSON: Perhaps I shouldn't have been so polite to Mr Rinaldi. Certainly, I can confirm that there was some discussion between Mr Harris, as I understand, from Harris Legal and Ms Parkes, of our office, yesterday afternoon, and if Mr Rinaldi's description of that conversation is accurate, certainly, he raises on behalf of his client a number of substantive and important issues. They are issues that only came to our attention yesterday as a consequence of that discussion. Without conceding any matter we would be prepared to seek from the Commission today that the dispute finding not extend to Pro Pak, that is, to Mr Rinaldi's client.

PN34

And in light of what I believe he described as his client's preferred position we would seek, perhaps, just a general direction seeking some discussions with Mr Rinaldi and/or his client perhaps with nothing more than a report back to the Commission at an appropriate time. Now, clearly, if matters are resolved, if there is an acceptance of the facts as presented by Mr Rinaldi the matter probably wouldn't proceed. Alternatively, if the union is still of a view that the arrangements to which he refers are something other than proper and legitimate arrangements, then subsequently directions could be entertained and made by the Commission to move the matter to formal hearing. So that is our position, sir. If the Commission pleases.

PN35

THE COMMISSIONER: Thank you, Mr Richardson. Well, in light of those submissions and having examined the various statutory declarations of Mr Sword, I find that there is in existence an industrial dispute within the meaning of the Workplace Relations Act 1996 and that the parties to the dispute are the National Union of Workers, De Bertoli Wines, Not Quite Right Proprietary Limited, Arakala Proprietary Limited, Clifford Hallam Proprietary Limited, Aussie Disposals Proprietary Limited, Primus Australia Proprietary Limited and San Remo Macaroni Company Proprietary Limited. And that the subject matters which are in dispute insofar as they are industrial matters within the meaning of the Act are contained in the letter of demand and the attached log of claims with the exception of clause 33, Preference of Employment.

PN36

And I find that the dispute exists throughout the State of Victoria in relation to Pro Pak's Contract Packers. I direct that there be further discussions between the National Union of Workers and representatives of that company to discuss the issues which have been raised this morning in relation to the parties to the dispute finding that I have made. I direct that there be discussions between the parties in relation to the log of claims. As regards a report back date the earliest that I can deal with the matter would be 16 July. Should there be a need for the matter to be listed more urgently than that, if you would just advise the Registrar and the matter will be - the file will be allocated to someone else as I am not available until that date. Unless there is anything further this matter is adjourned.

ADJOURNED UNTIL WEDNESDAY, 16 JULY 2003 [10.45am]